Plaintiff

The head of Gangseo-gu Seoul Metropolitan Government and 1 (Attorney Go Young-deok, Counsel for the defendant-appellant)

July 3, 2007

1. The plaintiff's lawsuit against the defendant Seoul Special Metropolitan City Mayor shall be dismissed.

2. The plaintiff's claim against the head of Gangseo-gu Seoul Metropolitan Government is dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

The order of transfer made by the Defendants against the Plaintiff on October 2, 2006 shall be revoked.

1. Basic facts

The following facts may be acknowledged either in dispute between the parties or in accordance with Gap evidence Nos. 1, 4, Eul evidence No. 1, 3, Eul evidence No. 9, 12, and Eul evidence No. 13, by integrating the whole purport of the pleadings:

A. The plaintiff was appointed as a local administrative secretary on Nov. 1, 1978 and worked in Jongno-gu Sejongdong Office on Jul. 1, 1995 when he was working in the Jongno-gu Urban Rearrangement Bureau's housing and the Gangseo-gu Construction Administration through the Gangseo-gu Construction Administration Department on Jul. 1, 1995 when he applied for personnel exchange on Feb. 1, 1996 and worked until Oct. 1, 2006 after he was issued as Gangseo-gu on Apr. 30, 1984, as a local administrative secretary, as a local administrative assistant on Dec. 20, 191, and as a local administrative assistant on Jan. 1, 200.

B. Under Article 30-2(2) and (3) of the Local Public Officials Act, Article 27-5 of the Decree on the Appointment of Local Public Officials, and Article 27-5 of the Seoul Special Metropolitan City Personnel Exchange Regulations, the head of Gangseo-gu Seoul Metropolitan Government (hereinafter “head of Gangseo-gu”) ordered the transfer of the Plaintiff to Guro-gu on October 2, 2006, as recommended by the Seoul Special Metropolitan City Mayor pursuant to the “Personnel Exchange Plan for Public Officials of Grade IV or lower in Seoul Special Metropolitan City” as recommended by the Seoul Special Metropolitan City Mayor (hereinafter “instant transfer order”).

2. Determination on the legitimacy of the lawsuit against the Seoul Special Metropolitan City Mayor

The plaintiff asserts that since the defendant Seoul Special Metropolitan City Mayor led the head of Gangseo-gu to order the transfer of this case, the plaintiff also sought the cancellation of the transfer order.

In principle, an administrative agency that has conducted an administrative disposition, etc., which is the subject of a lawsuit, in its external name, shall be the defendant. It is not different from that of the superior administrative agency or other administrative agency's instruction or notification. As seen above, even if the head of Gangseo-gu ordered the transfer of this case upon the recommendation of the head of defendant Gangseo-gu Seoul Metropolitan Government, as long as the order was executed under the name of the head of defendant Gangseo-gu, the head of defendant Gangseo-gu can only be the defendant for the cancellation of the order of transfer of this case, and the head of defendant Gangseo-gu has no standing to be the defendant. Thus, the part of the lawsuit against the head of defendant Gangseo-gu Seoul Metropolitan Government among the lawsuit of this case is against

3. Whether the transfer order of this case is legitimate

A. The parties' assertion

The defendant Gangseo-gu asserts that the transfer order of this case was lawful based on Article 30-2 (2) and (3) of the Local Public Officials Act, Article 27-5 (1) 2, (2), and (3) of the Decree on the Appointment of Local Public Officials, and Article 27-5 (1) 2, (2), and (3) of the Seoul Metropolitan Government Ordinance on the Personnel Exchange of Local Public Officials, the plaintiff asserts that

(1) The instant transfer order was issued without going through the deliberation procedure of the personnel exchange council as stipulated in Article 30-2(2) of the Local Public Officials Act, and it was unlawful, and thereafter the procedure was supplemented after the deliberation procedure was held by the personnel exchange council, and even if the procedure was subsequently supplemented after the deliberation procedure, the applicant for administrative, technical, and technical exchanges was determined to require his consent as a result of the deliberation, but the head of Gangseo-gu ordered the instant transfer order to the Plaintiff without the Plaintiff’s consent. Thus, the instant transfer order was unlawful and is against the deliberation result of the said personnel exchange council.

(2) Article 27-5(1) of the Decree on the Appointment of Local Public Officials, which is the basis of the instant order for transfer, provides that in the case of exchanging class 1 through class 5 or class 6 technical job categories, the exchange between neighboring local governments under subparagraph 2, and exchange between class 3 through class 5 or lower public officials to place their annual notices. The instant order for transfer does not meet all the requirements of each subparagraph of Article 27-5(1) of the Decree on the Appointment of Local Public Officials, but was enforced without the Plaintiff’s consent, and thus, constitutes an abuse of personnel rights.

(3) The instant transfer order is a compulsory transfer without the premise of the Plaintiff’s consent, and is null and void by infringing on the principle of guarantee of the status of public officials under the Constitution, the principle of political neutrality, the freedom of occupation selection, etc. The instant transfer order is deemed null and void by infringing on the right to equal rights, the right to pursue happiness, etc. under the Constitution, since it is forced transfer to a place where it takes place for three hours or at the time of commuting without any incentive, and in personnel exchanges between central and local governments, at the request of the central government or upon the consent of the principal.

(b) Related statutes;

[Local Public Officials Act]

Article 30-2 (Personnel Exchange)

(1) If the Minister of Education and Human Resources Development or the Minister of Government Administration and Home Affairs deems it necessary for the balanced placement of human resources and the administrative development of local governments, he/she may prepare a personnel exchange plan in accordance with the personnel exchange standards as determined by the Ministry of Education and Human Resources Development or the personnel exchange council established under the Ministry of Government Administration and Human Resources Development or the Ministry of Government Administration and Home Affairs, and recommend the head of the local government concerned to exchange personnel. In this case, the head of the local government concerned shall comply with it unless there is any justifiable reason. <

(2) Where a Mayor/Do Governor deems it necessary to exchange personnel between the local governments and the local governments within his/her jurisdiction, he/she may prepare a plan for exchange of personnel in accordance with the standards for exchange of personnel as determined by the personnel exchange council established in the City/Do concerned and recommend the head of the local government within his/her jurisdiction to exchange personnel. In such cases,

(3) The subjects of personnel exchanges under paragraphs (1) and (2) shall be prescribed by Presidential Decree, and the organization and operation of the personnel exchange council, procedures for personnel exchanges, and other matters necessary for personnel exchanges shall be prescribed by the Ordinance of the Ministry of Education and Human Resources Development, the Ordinance of the Ministry

[Appointment of Local Public Officials]

Article 27-5 (Exchange of Personnel between Local Governments)

(1) Cases where personnel exchanges may be exchanged between local governments under the provisions of Article 30-2 of the Act shall be as follows: Provided, That in cases falling under subparagraph 3, the principal’s application or consent shall be required:

1. Where public officials of Grade V or higher or public officials in technical series of class VI or public officials in technical series of class VI are exchanged for the balanced placement of human resources among local governments and the balanced development of local administration;

2. Where an exchange is made between neighboring local governments for the promotion of cooperative systems between administrative agencies and the development of comprehensive abilities of public officials.

3. Where it is necessary for the placement of a public official of Grade V or lower in rank;

(2) The number of personnel exchanges under paragraph (1) (excluding the number of personnel conducted under paragraph (1) 3) shall be the minimum necessary, but when the Minister of Government Administration and Home Affairs, the Minister of Education and Human Resources Development or the Mayor/Do Governor determines the number of personnel exchanges by local government, he/she shall hear opinions from

(3) The Minister of Government Administration and Home Affairs, the Minister of Education and Human Resources Development, or Mayors/Do Governors shall, when formulating a personnel exchange plan or conducting personnel exchange, make a recommendation from the heads of local governments on persons subject to exchange or upon request for transfer to the relevant local governments, reflect such recommendation to the maximum extent possible,

[Rules on Personnel Exchange of Local Public Officials]

Article 3 (Establishment and Organization of Personnel Exchange Council)

(1) The Personnel Exchange Council (hereinafter referred to as the "Council") shall be established under the jurisdiction of the Seoul Special Metropolitan City Mayor (hereinafter referred to as the "Mayor") pursuant to the provisions of Article 30-2 (2) of the Act.

Article 10 (Formulation of Personnel Exchange Plans)

(1) Where it is necessary to exchange personnel between Sis/Guns/Gus pursuant to Article 30-2 (2) of the Act and Article 27-4 of the Decree on the Appointment of Local Public Officials (hereinafter referred to as the "Decree"), the head of a Si shall formulate a personnel exchange plan and request the Council for deliberation.

Article 13 (Confirmation and Notification of Personnel Exchange Plans)

The Mayor shall immediately notify the head of the Gu of the personnel exchange plan finalized after deliberation by the Council and recommend the implementation thereof.

Article 14 (Notification of Results of Personnel Exchange)

The Mayor and the head of the Gu shall conduct personnel exchanges without delay in accordance with the finalized personnel exchange plan and shall notify the Mayor of the results within three days.

Article 15 (Personnel Management for Exchange Officials)

The Mayor and the head of the Gu shall appoint a person to an appropriate position in consideration of the major field of public officials exchanged in personnel affairs, the duties in charge of the previous affiliated agencies, the desired departments, etc., and shall not disadvantageously treat him/her in promotion, transfer, performance evaluation, education,

(c) Fact of recognition;

The following facts may be acknowledged in full view of each of the above evidence as evidence Nos. 3, 5, 8, 9, 11, 2, 4, 5 through 8, 5, 5, 11, 5, 5, 5, 11, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5,

(1) Prior to the implementation of a local autonomy system, public officials of Seoul Special Metropolitan City and each Gu office were circularly working in the Seoul Special Metropolitan City Office and each Gu office, and there was no problem of imbalance in the organization’s well-being or the promotion of each Gu office. However, as a local autonomy system was implemented on July 1, 1995, local public officials were assigned to the Seoul Special Metropolitan City Mayor and each autonomous Gu office and were working in the Seoul Special Metropolitan City and each autonomous Gu office only for the Seoul Special Metropolitan City and each autonomous Gu, not for the former circular service system. Accordingly, there was a problem of authorization and permission of the organization, the principle of non-permission, and the imbalance in promotion, etc.

(2) The head of Defendant Seoul Special Metropolitan City, in consultation with the head of each autonomous Gu from around 1998, solves problems such as imbalance in the promotion of technical staff by conducting a part of the integrated personnel management for the public officials in technical service, and the individual personnel management for each local government for the ten preceding years after the implementation of the local autonomy system, and the head of Seoul Special Metropolitan City, the head of the Seoul Special Metropolitan City, prepared the "Agreement on Regular Personnel Exchange and Integration of City/Autonomous Gu" on the basis of Article 30-2 of the Local Public Officials Act and Article 27-5 of the Decree on the Appointment of Local Public Officials and Article 27-5 of the Decree on the Appointment of Local Public Officials, and collected opinions through the Seoul Special Metropolitan City Council, which is the consultative body of the head of each autonomous Gu under the Seoul Special Metropolitan City, on August 23, 2006.

(3) In light of the main contents of the above consolidated personnel agreement, the Si/autonomous Gu shall regularly exchange personnel at least once a year by establishing objective exchange standards, such as period of service, age, number of exchanges, etc., and the exchange standard at the time of regular personnel exchanges shall be excluding those who have served for not more than three years at the retirement age by class (age standard), not less than Grade 1, not less than Grade 5, not less than Grade 6, and not less than Grade 6 for each autonomous Gu (age standard), and not less than Grade 5 for each autonomous Gu. The detailed criteria shall be determined by the council of the Si/Gu and the head of the autonomous Gu after consultation at each time of exchange. The head of the autonomous Gu shall place human resources balanced in consideration of the conditions of the Si/Gun/autonomous Gu (Article 2), and the examination of the promotion of technical and computer service shall be conducted by combining 25 autonomous Gus and 25 autonomous Gus (Article 7), and the consultation standard at the time of the above regular personnel exchanges shall be implemented between Grade 5 and autonomous Gu employees (Article 5).

(4) Under the above consolidated personnel agreement, the Seoul Special Metropolitan City prepared the "Plan for Promotion and Transfer (Exchange) in the second half of the year 2006", and around September 1, 2006, notified the 25 autonomous Gu offices within the jurisdiction of the 25 autonomous Gu of the appointment of the subjects of exchange and those who wish to be exchanged, such as class 1, class 5, class 6 and class 5, by autonomous Gu, to submit the list by the 18th day of the same month.

(5) On the 7th of the same month, Seoul Special Metropolitan City is the head of the first administrative market, and the head of the 25 autonomous Gu is present and decided on the personnel exchange plan of public officials of Grade IV or below in Seoul Special Metropolitan City, and then notified the results of deliberation to each autonomous Gu office on the same day. According to the following: ① On the 5th of October 1, 1949, the 5th class or above shall be the 6th of October 1, 1952, the 4th of October 1, 1952, the 2nd of the 4nd of the 25th of the 25th of the 25th of the 25th of the 25th of the 25th of the 20th of the 20th of the 20th of the 20th of the 20th of the 20th of the 20th of the 20th of the 20th of the 20th of the 20th of the 20th of the 2nd of the 3rd of the 2 administrative service.

(6) On the 4th of the same month, the head of Gangseo-gu requested each affiliated department to identify the applicant for exchange while ordering the "notification of the personnel exchange plan for public officials of Grade V or lower", but there is only one person who wishes to exchange as a Grade VI administrative position, and considering the inconvenience of commuting to and from work when he/she is transferred to the Seoul Special Metropolitan City or another affiliated autonomous Gu office, the head of Gangseo-gu determined the criteria for the selection of the person to be assigned to the Dong office where the importance and difficulty of duties are low for the continuity of duties of the Gu administration among the long-term residents of Grade VI team in Gangseo-gu on July 28, 2006, taking into account the inconvenience of commuting to and from work when he/she is transferred to the Seoul Special Metropolitan City or its affiliated autonomous Gu office. Accordingly, the first appointment date as a resident of the long-term worker who has worked for

(7) The head of Gangseo-gu Office selected the plaintiff as an object of exchange and demanded that the plaintiff notify the plaintiff and notify him of the desired work of the plaintiff to the five network, but the plaintiff did not submit the plaintiff's desire to work while taking legal action against the plaintiff's desire to work, and submitted a list of the subjects of personnel exchange for autonomous public officials to the Seoul Special Metropolitan City on September 19, 2006.

(8) In the process of combining the list of subjects of exchange by each autonomous Gu office, the head of the defendant Seoul Metropolitan Government knew that the plaintiff's desired place of service was a disturbance for the purpose of assigning subjects of exchange according to the results of deliberation by the Seoul Personnel Exchange Council, and requested that the person in charge inform the plaintiff of the desired place of service by wire, but the plaintiff failed to comply with this request, and thus, the plaintiff intended to place the plaintiff to the Yangcheon-gu office most adjacent to the plaintiff's domicile, considering that the plaintiff's address was the Gocheon-si, Seocheon-gu, Seocheon-gu, but the head of Yangcheon-gu Office intended to place the plaintiff to the office nearest to the plaintiff's domicile, but the head of the office of Yangcheon-gu shall keep the order of priority and place the plaintiff to the adjacent job placement Guro-gu,

(9) The head of Gangseo-gu Office ordered the transfer of this case from October 2, 2006 to Guro-gu Office in accordance with the recommendation for personnel exchange pursuant to the above direction.

(10) The plaintiff was issued as a Dong office of high-scale 2 Dong office of Guro-gu by the head of Guro-gu, and the distance from the Dong office of Seocheon-si to the Dong office of the plaintiff is about 8km and it reaches about 20 minutes if a passenger car is used by the plaintiff, and it is possible to commute to and from the Dong office of the above address when it is transferred to one bus.

D. Judgment on the Plaintiff’s assertion

(1) Determination on the first argument

As seen earlier, the Seoul Special Metropolitan City notifies the 25 autonomous Gu offices within the jurisdiction of September 1, 2006 of the "Plan for Promotion and Transfer of Workers" for the second half of the year 2006. On the 7th of the same month, the Seoul Special Metropolitan City Council of Personnel Exchange with the chairperson of the first administrative market for the deliberation and determination of the "Plan for Personnel Exchange of Public Officials of Grade IV or lower within the jurisdiction" was notified to the 25 autonomous Gu offices under its jurisdiction of the procedure based on such personnel exchange plan and the order of this case was issued to the plaintiff on September 29 of the same year because the order of this case was unlawful because the 25 autonomous Gu offices within the jurisdiction of the 206th of the Seoul Special Metropolitan City was made without deliberation by the personnel exchange council, and it was also unlawful because the 25th of the 6th of the 6th of the 6th of the 6th of the 6th of the 6th of the 6th of the 6th of the 6th of the 6th of the 5th of the 5th of the 6th of the 5th of the son.

(2) Judgment on the second argument

Article 27-5(1) of the Decree on the Appointment of Local Public Officials provides that personnel exchanges among local governments may be conducted pursuant to Article 30-2 of the Local Public Officials Act, and subparagraph 1 provides that in the case of exchanging public officials of Grade V or higher or public officials of Grade VI or public officials in technical job series for the balanced placement of human resources among local governments and the balanced development of local administration, subparagraph 2 provides that in the case of exchanging public officials of Grade V or lower or public officials of Grade VI with neighboring local governments for the promotion of cooperative system among administrative agencies and the comprehensive development of public officials' capabilities, subparagraph 3 provides that in the case of personnel exchanges for the placement of public officials of Grade V or lower in order to place public officials' annual notices, subparagraph 3 provides that only in the case of subparagraph

In this case, as seen earlier, the Plaintiff’s order of transfer of this case as class 6 of administrative service is not for the assignment of annual notice. Thus, the order of transfer of this case cannot be considered as personnel exchange pursuant to subparagraph 1(b)(3) of the above subparagraph, and it constitutes personnel exchange pursuant to subparagraph 2 of the above subparagraph. Thus, the term “in the case of exchange between neighboring local governments for the purpose of promoting cooperative system among administrative agencies and promoting the comprehensive capacity of public officials” as stipulated in subparagraph 2 of the above subparagraph is not limited to only the local government that is immediately adjacent to the local government, but also neighboring local governments that are close to the above public official, as long as it does not entail any difficult change in living conditions. It is reasonable to view that the order of transfer of this case is located within the same living zone as the original area of Yeongdeungpo-gu, Guro-gu, and Yangcheon-gu are located within the same living zone. The Plaintiff’s order of transfer of this case from the head of Gangseo-gu Office to the second Dong Office of Guro-dong, which is the Plaintiff’s domicile, to the second Dong Office of Guro-gu.

(3) Judgment on the third argument

However, as seen earlier, the instant order was based on Article 30-2 of the Local Public Officials Act, Article 27-5 (1) 2 of the Decree on the Appointment of Local Public Officials, and Personnel Exchange Regulations of Seoul Special Metropolitan City. Article 27-5 (1) of the Decree on the Appointment of Local Public Officials provides that only a public official of Grade V or lower must apply for or consent to the relevant public official only when he/she is subject to Article 27-5 (1) 3 of the Decree on the Appointment of Local Public Officials (where necessary for posting a public official of Grade V or lower, he/she shall not be deemed to require the relevant public official’s application or consent even in cases falling under subparagraphs 1 and 2, other than

Meanwhile, in light of the purpose of Article 30-2 of the Local Public Officials Act, Article 27-5 of the Decree on the Appointment of Local Public Officials, and Article 27-5 of the Local Public Officials Act, the purpose of the personnel exchange system among local governments is to ensure balanced placement of human resources among local governments through personnel exchange among local governments and balanced development of local administration, ② to promote the cooperation system among administrative agencies and the overall development of public officials, ③ to improve the identity of the community of public officials, and to put the vitality into administrative organizations by eliminating the identity of the public officials. In light of the purpose of the personnel exchange system, the personnel exchange system between local governments must be achieved for the settlement and development of the local government system. In light of this purpose of the personnel exchange system, it is inevitable that the personnel exchange among local governments can not be implemented for many public officials more than a certain size, and it inevitably includes a mutual exchange from the sponsed land to the sponsed land, and in such a case, it is clear that the purpose of the system can not be achieved by effectively making smooth personnel exchanges.

In addition, as seen earlier, Article 30-2 of the Local Public Officials Act and Article 27-5 of the Decree on the Appointment of Local Public Officials, and Article 27-5 of the Seoul Special Metropolitan City Personnel Exchange Rules provide detailed provisions on the subjects and procedures for personnel exchanges, so that the contents and legitimacy of the procedures can be ensured. A public official transferred through personnel exchanges can maintain his/her affiliated organization while the class and the number of years of service is changed, so it is difficult to see that there is fundamental change in his/her status as a local public official. Since personnel exchanges are conducted between local governments within the jurisdiction of the Si/Do and the Do, it is difficult to see that there is difficult change in his/her status as a local public official. As such, if his/her interest is excessively or unreasonably infringed upon by personnel exchanges, it is difficult to say that the personnel orders of the public official themselves abuse his/her personnel rights or deviate from the limits of discretion, and thus, it is difficult to provide various incentives at the time of employment exchange between central and local governments to secure his/her residence and his/her neighboring office of Yeongdeungpo-gu Seoul Metropolitan Government.

(4) Therefore, the instant transfer order is lawful.

3. Conclusion

If so, the plaintiff's lawsuit against the head of Gangseo-gu Seoul Metropolitan Government is unlawful and dismissed, and the claim against the head of Gangseo-gu Office is dismissed as it is without merit. It is so decided as per Disposition.

Judges Jeong-hee (Presiding Judge)